Law, emotion and the objectivity debate

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This article will argue that emotional thinking and decision-making does not lead to an abandonment of objectivity when we drill down and consider what precisely we mean by both emotion and objectivity in law. In doing this I do not necessarily wish either to accept or to challenge the importance that objectivity occupies in our legal thinking, but merely to reconsider its definition and hope for a more nuanced conversation around its significance, purpose and function. I will argue that if we accept a meaning of emotion that connects it to rationality, and if we accept a meaning of objectivity which connects it to our agency, then emotion and objectivity are not opposites, but rather, two mutually reliant and essential parts of legal thinking and legal decision making.

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... In research from several disciplines, the traditional dichotomy between emotion and rationality has been replaced by an understanding in which emotion and rationality are seen as complementary (Damasio 1994;de Sousa 1987;Etzioni 1988;Illouz and Finkelman 2009) or even continuous (Barbalet 1998;Barrett 2017;Grossi 2019). Emotions are necessary to determine salience (de Sousa 1987;Morton 2010); to evaluate the importance of different alternatives (Damasio 1994); to motivate or evaluate knowledge acquisition (Arango-Muñoz 2014); and to motivate and facilitate a rational focus (Barbalet 2002). ...
... When we narrow our focus to legal decision-making in court, two central perspectives emerge: information processing and empathy (for reviews see Bandes 2009;Feigenson and Park 2006;Henderson 1987). Both perspectives engage with the problem of agency for rational decision-making: (How) can a feeling subject make objective decisions (Grossi 2019)? ...
... The impact of emotion in a legal setting is complex and includes the arbiters' respective moods when coming to court (Semmler and Brewer 2002), their understandings of the evidence (Salerno and Bottoms 2009), and their interpretations of the emotional state of the victims/plaintiffs or defendants, for example, in relation to evaluating credibility (Weisman 2016;Wessel et al. 2006). Although the biasing role of emotion in rational information processes is central to social psychological theory building in this field, there is also emerging research arguing that awareness of and reflection on emotional processes could promote objective decision-making (Gendron and Barrett 2019;Grossi 2019), the implication being that silencing emotions per se disrupts rational reasoning (Maroney and Gross 2014). ...
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This article analyzes rational decision‐making in court as an emotive‐cognitive process formed in and through social interaction. Current theoretical perspectives have shown how emotion and thought are intertwined in the workings of the human brain but have seldom elaborated on the contextual and structural features of rational‐emotional decision‐making. I propose a model that maps emotional processes and emotional management demands to the temporally extended, stepwise process of rational‐legal decision‐making. I show that (a) the bounded structure of the decision‐making process actualizes different emotive‐cognitive complexes at different stages and (b) the demand for objectivity in rational decision‐making calls for parallel emotional processes and subject positions to remain independent while sustaining social cohesion.
The extinction of a species can provoke deep feelings of sadness, injustice, compassion and empathy for the individuals lost. In this paper we argue that law, as a governance institution, does not allow decision-makers the use of emotions such as compassion or empathy, when making decisions relevant to the possible extinction of species, despite evidence to suggest that such emotions elevate the importance of moral concerns, and so may be utilised to halt the extinction process. Further, we argue that law can impact our ability to feel compassion and empathy for species heading towards extinction, as it creates a narrative of apathy. This is particularly exacerbated when it comes to the potential extinction of invertebrates, whose needs and interests are often already subject to people’s negative emotional pre-dispositions. By analysing the recent legal decisions surrounding the approval of the Yeelirrie Uranium mine in Western Australia, we highlight the nature of this problem and what it means for the conservation of invertebrate species, and argue that environmental law’s commitment to utilitarian and rational traditions will continue to challenge how we react to, and allow, the extinction of invertebrate.
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Core international crimes such as genocide, war crimes and crimes against humanity are the backbone of international criminal law (ICL) and are also considered the worst atrocities known to mankind. Already with the establishment of the Nuremberg International Military Tribunal (IMT) in 1945, questions were raised as to how ICL practitioners; ranging from forensic psychiatrists to judges, are influenced emotionally and cognitively by the context in which they are working. Yet research on such influences in practitioners' decision making has so far focused primarily on national criminal law and national jurisdictions, while ICL and international jurisdictions remain largely unexplored territory. Given the differences not only in terms of crime gravity, suspects and evidence but also the historical and political contexts, findings from national settings are not necessarily generalisable to ICL and international jurisdictions. The aim of this research is to tentatively explore the emotion-cognition interaction in ICL practitioners' decision making processes specifically. While the paper acknowledges that there is a risk of cognitive bias and error which constitutes a threat to the rule of law, it also recognises e.g. Emotional Intelligence (EI) as a potential promise to the administration of international criminal justice.
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This book discusses how judges qualify their activities as objective. The data for this project was retrieved from a large sample of cases using Langacker's methodology. The sample included over a thousand decisions from Brazil, Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain, Romania and the UK. The decisions considered allegations of judicial bias, unfairness, and injustice. Pre-judices are shared cognitive methods that legal practitioners perceive as necessary. The results of the study directly confirm Pierre Legrand's claims of pre-judices in legal discourse, and as corollary, Jules L. Coleman and Brian Leiter's idea of modest objectivity in law. © Peter Lang GmbH Internationaler Verlag der Wissenschaften Frankfurt am Main 2017. All rights reserved.
The role of empathy, the capacity to read someone else’s emotions, in the legal context has previously been studied in relation to primarily judges’ decision-making, often with a concern for objectivity. Our purpose is to study professional emotion management in the legal process through an analysis of Swedish prosecutors’ use of empathy. An ethnographic data collection took place between 2012 and 2015, including shadowing, observations and interviews with 36 prosecutors from 3 prosecution offices. The analysis shows that during the investigation, empathy helps identify the prerequisites of a crime and deciding if and how to prosecute. When preparing for trial, empathy is used to anticipate the situation in court. During the trial, the empathic process includes management of the emotions of others in order to stage credible testimonies, convince the judge and calm victims. The empathic process is oriented and restricted by the emotive–cognitive judicial frame through which prosecutors are rewarded by emotions of comfort and pride in demonstrating expertise of legal coding. We conclude that empathy is integral to prosecutors’ professional performance, including the requirement to be objective. The study points to the problems with silencing emotions and maintaining a positivist notion of objectivity in the legal system.
Introducing a sociological perspective on judicial emotions, we argue that previous studies underemphasize structural and interactional dimensions. Through key concepts in the sociology of emotions we relate professional court actors’ emotion management to the emotional regime of the judiciary. Examples from the Swedish judiciary illustrate three main arguments: (a) The idea of rational justice as nonemotional must be investigated as a joint accomplishment including collective emotion management; (b) Judicial objectivity requires situated emotion management and empathy, orientated by emotions of pride/shame; (c) The structural dimensions of power/status mitigate feeling and display rules. The situated power of the judge is upheld by ritual deference from other court professionals. Concluding, we suggest topics to develop structural and interactional perspectives on judicial emotion.
Introduction 1. Emotion in social life and social theory 2. Emotion and rationality 3. Class and resentment 4. Action and confidence 5. Conformity and shame 6. Rights, resentment, and vengefulness 7. Fear and change Epilogue.
This new edition of Genevieve Lloyd's classic study of the maleness of reason in philosophy contains a new introduction and bibliographical essay assessing the book's place in the explosion of writing and gender since 1984.
This paper takes up the question whether legal judgments and claims can be objective. Because law is best understood as an argumentative practice, I maintain that normativity in law arises from the employment of an identifiable grammar of legal argument wherein assertions and claims about the state of the law are appraised.
The concept of emotional labour describes the management of emotions as part of everyday work performance. Much of the research in this field has been in relation to jobs in the service sector where (mostly female) employees are required to shape their own feelings in order to make customers or clients feel at ease, comfortable or happy. There has been relatively little attention paid to the importance of emotional labour in professional occupations. This paper examines the emotional labour of magistrates in court. Magistrates must often regulate their own emotions and those of some court users, many of whom are not legally represented and who express a variety of emotions, including anger and distress, and experience social problems that may elicit emotions or emotional responses from the magistrate. The paper reports findings from interviews with over 40 magistrates throughout Australia and begins to address the significance of emotional labour for this branch of the judiciary.
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